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Tarun Jit Tejpal vs The State Of Goa on 19 August, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1246 of 2019
(Arising out of SLP (Crl.) No.1383 of 2018)

Tarun Jit Tejpal .. Appellant

Versus

The State of Goa Anr. .. Respondents

WITH

MA No.2207 of 2018 in SLP (Crl.) No.3149­3150 of 2014

JUDGMENT

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned Judgment

and Order dated 20.12.2017 passed by High Court of Bombay at Goa
Signature Not Verified

Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.08.20

in Criminal Revision Application No. 60 of 2017 by which the High
18:10:30 IST
Reason:

1
Court has dismissed the said Revision Application preferred by the

appellant herein – original accused and has refused to discharge the

appellant­original accused for offences under Sections 354, 354A,

354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC, appellant–

original accused has preferred the present appeal.

3. That the appellant herein – original accused is facing the trial for

the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and

376 (2) (k) of the IPC. The criminal proceedings were initiated against

the appellant herein pursuant to the FIR lodged on 22.11.2013 by the

Police Inspector, CID, Crime Branch, Dona Paula for the aforesaid

offences alleged to have been committed on 21.11.2013. That the

Investigating Officer collected the relevant material/evidence and also

recorded the statement of the relevant witnesses including the

prosecutrix and thereafter filed the charge­sheet against the appellant

for the aforesaid offences. That thereafter, the learned Additional

Sessions Judge, Mapusa vide Order dated 07.09.2017 ordered charge

to be framed against the appellant for the offences under Sections

354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC.

3.1 Feeling aggrieved and dissatisfied with the Order dated

07.09.2017 passed by the learned Additional Sessions Judge, Mapusa

ordering charge to be framed against the appellant herein – original

2
accused for the aforesaid offences, the appellant herein­original

accused approached the High Court by way of Revision Application.

3.2 By the impugned Judgment and Order, the High Court has

dismissed the said Revision Application and has refused to discharge

the accused for the offences for which he has been charged. Hence,

the appellant­original accused is before this Court by way of present

appeal.

4. Shri Vikas Singh, learned Senior Advocate has appeared on

behalf of the appellant herein – original accused and Shri Tushar

Mehta, learned Solicitor General of India has appeared on behalf of the

respondents.

5. Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has vehemently submitted that, in the

facts and circumstances of the case, the High Court has materially

erred in not exercising the revisional jurisdiction and has materially

erred in not discharging the appellant – original accused from the

offences for which he has been charged.

5.1 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has further submitted that the High

Court has materially erred in not properly appreciating the scope and

ambit of powers to be exercised under Section 227 and 228 of the

3
CrPC.

5.2 It is further submitted by Shri Vikas Singh, learned Senior

Advocate appearing on behalf of the appellant­original accused that

the material collected during the course of the investigation and the

evidence so far on record do not make out even a prima facie case

against the appellant for the offences for which he has been charged.

5.3 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has further submitted that even from

the CCTV footage no case is made out against the appellant for the

offences for which he has been charged.

5.4 Shri Vikas Singh, learned Senior Advocate appearing on behalf of

the appellant­original accused has taken us to some WhatsApp

messages by the prosecutrix and has commented upon the same and

has submitted that the prosecutrix is not reliable at all and the

prosecutrix shall not be believed.

5.5 It is further submitted by Shri Vikas Singh, learned Senior

Advocate appearing on behalf of the appellant­original accused that in

the present case, the complainant and the Investigating Officer are the

same and therefore the entire criminal proceedings have been vitiated.

In support of his above submissions, Shri Vikas Singh, learned Senior

Advocate appearing on behalf of the appellant­original accused has

4
heavily relied upon the decisions of this Court in the case of Bhagwan

Singh v. The State of Rajasthan (1976) 1 SCC 15 as well as the

subsequent decision of this Court in the case of Mohan Lal v. State of

Punjab (2018) 17 SCC 627.

5.6 It is further submitted by Shri Vikas Singh, learned Senior

Advocate that as such the decision of this Court in the case of Mohan

Lal (Supra) is referred to a larger Bench by a two Judge Bench of this

Court vide Order dated 17.01.2019 in the case of Mukesh Singh v.

State (Narcotic Branch of Delhi) SLP (Crl.) D. No.39528 of 2018 and,

therefore, if this Court is not inclined to consider/follow the decision

of this Court in the case of Mohan Lal (Supra), the present appeal may

be kept pending till the decision by a larger Bench in the case of

Mukesh Singh (Supra). It is submitted that, however, in the case of

Mohan Lal (Supra), this Court has specifically observed and held that

if the complainant and the Investigating Officer are the same, the trial

is vitiated. Therefore, by heavily relying upon the decision of this Court

in the case of Mohan Lal (Supra) and the decision of this Court in the

case of Bhagwan Singh (Supra) it is prayed to quash the criminal

proceedings against the appellant and discharge the appellant from

the offences for which he has been charged.

5.7 Learned counsel appearing on behalf of the appellant­ original

5
accused has also made submissions on merits. However, in view of the

limited scope of jurisdiction to be exercised at the stage of Sections

227/228 of the CrPC which shall be dealt with hereinbelow, we do not

propose to go in detail and consider the submissions on merits at this

stage as even otherwise any observation by this Court at this stage in

the present proceedings may ultimately affect either of the parties in

the trial.

5.8 Making the above submissions and relying upon above decisions,

it is prayed to allow the present appeal and quash and set aside the

impugned Judgment and Order passed by the High Court as well as

the Order passed by the learned Trial Court and discharge the

appellant from the offences under Sections 354, 354A, 354B, 341,

342, 376 (2) (f) and 376 (2) (k) of the IPC.

6. The present appeal is vehemently opposed by Shri Tushar Mehta,

learned Solicitor General of India appearing on behalf of the

respondents.

6.1 Shri Tushar Mehta, learned Solicitor General of India appearing

on behalf of the respondents has vehemently submitted that in the

present case, after thorough investigation and thereafter having found

the prima facie case against the accused, the Investigating Officer has

filed the charge­sheet against the accused for the offences under

6
Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the

IPC. It is submitted that thereafter, after considering the

material/evidence on record, the learned Trial Court has framed the

charge against the accused. It is submitted that thereafter,

considering the limited scope of jurisdiction to be exercised at the

stage of framing the charge under Section 227/228 of the CrPC, the

High Court has rightly refused to discharge the appellant­original

accused and has rightly refused to set aside the Order passed by the

learned Trial Court ordering charge to be framed against the

appellant­original accused.

6.2 Shri Tushar Mehta, learned Solicitor General of India appearing

on behalf of the respondents has heavily relied upon the following

decisions of this Court in support of his submission that at the stage

of Section 227 and/or Section 228 of the CrPC ­ at the stage of

framing of the charge, the truth, veracity and effect of the evidence

which the Prosecutor proposes to adduce are not to be meticulously

judged. Nor is any weight to be attached to the probable defence of the

accused. It is vehemently submitted by Shri Tushar Mehta, learned

Solicitor General that it is not obligatory for the Judge, at the stage of

framing of the charge, to consider in any detail and weigh in a

sensitive balance whether the facts, if proved, would be incompatible

7
with the innocence of the accused or not. It is vehemently submitted

by Shri Tushar Mehta, learned Solicitor General that at the stage of

framing of the charge the Court is only required to consider whether

there is ground for presuming that the accused has committed the

offence and nothing more than that. It is submitted that even it is held

by this Court that if, at the initial stage, there is a strong suspicion

which leads the Court to think that there is ground for presuming that

the accused has committed an offence then it is not open to the Court

to say that there is no sufficient ground for proceeding against the

accused.

6.3 It is further submitted by Shri Tushar Mehta, learned Solicitor

General that in the present case, there is ample material/evidence on

record against the accused and sufficient grounds are available for

proceeding against the accused.

6.4 It is further submitted by Shri Tushar Mehta, learned Solicitor

General that whatever submissions are made by the learned counsel

appearing on behalf of the appellant­original accused are on merits of

the case and/or they can be said to be of defence which may be

available to the accused and they are not required to be considered at

the stage of framing of the charge. And thereafter, it is prayed to

dismiss the present appeal. In support of his above submissions and

8
prayer to dismiss the present appeal, Shri Tushar Mehta, learned

Solicitor General has heavily relied upon the following decisions of this

Court :

(i) Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 (Para 10),

(ii) State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (Para 4),

(iii) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1

SCC 715,

(iv) Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460,

(v) Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330,

(vi) Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya,

(1990) 4 SCC 76,

(vii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 (Para 29 to

31.3),

(viii) State v. S. Selvi, (2018) 13 SCC 455,

(ix) Mauvin Godinho v. State of Goa, (2018) 3 SCC 358.

6.5 Now, so far as the submissions made by Shri Vikas Singh,

learned Senior Advocate appearing on behalf of the appellant­original

accused that as in the present case the Investigating Officer and the

complainant are the same and therefore the criminal proceedings are

required to be quashed and the reliance placed upon the decisions of

this Court in the case of Bhagwan Singh (Supra) and in the case of

9
Mohan Lal (Supra) are concerned, it is vehemently submitted by Shri

Tushar Mehta, learned Solicitor General that in the case of Mohan Lal

(Supra) this Court was considering its earlier decision in the case of

Bhagwan Singh (Supra), however, subsequently, another three Judge

Bench of this Court in the case of Varinder Kumar v. State of Himachal

Pradesh Criminal Appeal No.2450­51 of 2010 dated 11.02.2019,

(2019) SCC OnLine SC 170 has specifically observed and held that the

decision of this Court in the case of Mohan Lal (Supra) shall be

applicable prospectively and that all pending criminal prosecutions,

trials and appeals prior to the law laid down in Mohan Lal (Supra)

shall continue to be governed by the individual facts of the case. It is

submitted therefore that in view of the law laid down by this Court in

the case of Varinder Kumar (Supra), as in the present case, the

criminal prosecution has been initiated prior to the decision of this

Court in the case of Mohan Lal (Supra), the criminal proceedings are

not required to be quashed and set aside and the appellant­original

accused against whom strong grounds are made out for prosecution,

is not required to be discharged.

6.6 Making the above submissions and relying upon the above

decisions, it is prayed to dismiss the present appeal.

7. In rejoinder and on the reliance based upon the subsequent

10
decision of this Court in the case of Varinder Kumar (Supra) relied

upon by Shri Tushar Mehta, learned Solicitor General, Shri Vikas

Singh, learned Senior Advocate has vehemently submitted that in the

case of Varinder Kumar (Supra) it was not open for the subsequent

Bench to observe and hold that the decision in the case of Mohan Lal

(Supra) would be applicable prospectively. It is vehemently submitted

by Shri Vikas Singh, learned Senior Counsel that only in the case of

Mohan Lal (Supra), the Court could have observed and held that the

said decision shall be made applicable prospectively. It is submitted

that in the case of Mohan Lal (Supra) the Bench did not observe that

the said decision shall be applicable prospectively. It is submitted that

therefore it was not open for the subsequent Bench to observe and

hold that the decision in the case of Mohan Lal (Supra) would be

applicable prospectively. It is submitted that therefore the decision of

this Court in the case of Mohan Lal (Supra) shall be applicable with

full force to the facts of the case on hand and as the complainant and

the Investigating Officer are the same, the entire criminal proceedings

have been vitiated and therefore it is prayed to allow the present

appeal and discharge the appellant from the offences for which he has

been charged.

8. We have heard the learned Counsel for the respective parties at

11
length. We have also gone through and considered the Judgment and

Order passed by the High Court as well as the relevant material on

record.

8.1 At the outset it is required to be noted that after conclusion of

the investigation, the Investigating Officer had filed the charge­sheet

against the accused for the offences under Sections 354, 354A, 354B,

341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned

Trial Court has framed the charge against the appellant­original

accused for the aforesaid offences, in exercise of its powers under

Section 227/228 of the CrPC. Framing of the charge against the

accused for the aforesaid offences was the subject matter before the

High Court. By the impugned Judgment and Order the High Court has

dismissed the Revision Application and has confirmed the Order

passed by the learned Trial Court ordering to frame the charge against

the accused for the aforesaid offences. Hence, the appellant­original

accused is before this Court by way of present appeal.

8.2 That it is mainly contended on behalf of the appellant that in the

present case as the complainant and Investigating Officer are the

same and therefore in view of the decision of this Court in the case of

Mohan Lal (Supra) the entire criminal proceedings are vitiated and

therefore the appellant – original accused is to be discharged.

12
However, it is required to be noted that apart from the fact that the

decision of this Court in the case of Mohan Lal (Supra) has been

doubted and pursuant to the Order passed by this Court dated

17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to

the larger Bench. In the subsequent decision in the case of Varinder

Kumar (Supra), a three Judge Bench of this Court had an occasion to

consider the decision of this Court in the case of Mohan Lal (Supra)

and the three Judge Bench of this Court has held that the decision of

this Court in the case of Mohan Lal (Supra) shall be applicable

prospectively, it is further held that all pending criminal prosecutions,

trials and appeals prior to the law laid down in Mohan Lal (Supra)

shall continue to be governed by the individual facts of the case.

Therefore, the reliance placed upon the decision of this Court in the

case of Mohan Lal (Supra) by the learned Counsel appearing on behalf

of the appellant­original accused is misplaced. Now, the submission

made by Shri Vikas Singh, learned Senior Advocate appearing on

behalf of the appellant­original accused that the subsequent Bench in

the case of Varinder Kumar (Supra) could not have held that the

decision of this Court in the case of Mohan Lal (Supra) shall be

applicable prospectively is concerned, at the outset, it is required to be

noted that this Bench is not considering whether in the subsequent

13
decision in the case of Varinder Kumar (Supra), the Bench could not

have considered the prospective applicability of the decision in the

case of Mohan Lal (Supra) or not? The three Judge Bench of this Court

held that the decision of this Court in the case of Mohan Lal (Supra)

would be applicable prospectively and the same shall not affect

criminal prosecutions, trials and appeals. We are bound by that

decision. Therefore, we are of the opinion that the decision of this

Court in the case of Mohan Lal (Supra) shall not be applicable to the

facts of the case on hand as criminal prosecution has been initiated in

the present case much prior to the decision in the case of the Mohan

Lal (Supra). Therefore, the appellant cannot be discharged at this

stage on the aforesaid ground mainly that the Investigating Officer and

the complainant/informant are the same the trial is vitiated, relying

upon the decision of this Court in the case of Mohan Lal (Supra). Even

the decision of this Court in the case of Bhagwan Singh (Supra), relied

upon by the learned Counsel appearing on behalf of the appellant­

original accused, also shall not be of much assistance to the appellant

at this stage. In the case of Bhagwan Singh (Supra) and after the trial

this Court held that as the complainant herself was the Investigating

Officer, the case of the prosecution would not be free from doubt. It

was the case after trial and not at the stage of framing of the charge.

14
Where the complainant himself had conducted the investigation, such

aspect of the matter can certainly be given due weightage while

assessing the evidence on record but it would be completely a different

thing to say that the trial itself would be vitiated for such infraction.

Therefore, the aforesaid ground is not required to be considered at this

stage, namely, at the stage of framing of the charge. At the stage of

framing of the charge, the different considerations would weigh, which

are dealt with hereinbelow.

9. Now, so far as the prayer of the appellant to discharge him and

the submissions made by Shri Vikas Singh, learned Senior Advocate

on merits are concerned, the law on the scope at the stage of Section

227/228 CrPC is required to be considered.

9.1 In the case of N. Suresh Rajan (Supra) this Court had an occasion

to consider in detail the scope of the proceedings at the stage of

framing of the charge under Section 227/228 CrPC. After considering

earlier decisions of this Court on the point thereafter in paragraph 29

to 31 this Court has observed and held as under:

“29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr Ranjit
Kumar commend us. True it is that at the time of
consideration of the applications for discharge, the
court cannot act as a mouthpiece of the prosecution
or act as a post office and may sift evidence in order to
find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is

15
trite that at the stage of consideration of an
application for discharge, the court has to proceed
with an assumption that the materials brought on
record by the prosecution are true and evaluate the
said materials and documents with a view to find out
whether the facts emerging therefrom taken at their
face value disclose the existence of all the ingredients
constituting the alleged offence. At this stage,
probative value of the materials has to be gone into
and the court is not expected to go deep into the
matter and hold that the materials would not warrant
a conviction. In our opinion, what needs to be
considered is whether there is a ground for presuming
that the offence has been committed and not whether
a ground for convicting the accused has been made
out. To put it differently, if the court thinks that the
accused might have committed the offence on the
basis of the materials on record on its probative value,
it can frame the charge; though for conviction, the
court has to come to the conclusion that the accused
has committed the offence. The law does not permit a
mini trial at this stage.

30. Reference in this connection can be made to a
recent decision of this Court in Sheoraj Singh
Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4
SCC (Cri) 21 : AIR 2013 SC 52] , in which, after
analysing various decisions on the point, this Court
endorsed the following view taken in Onkar Nath
Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 :
(2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat
case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR
2013 SC 52] , SCC p. 482, para 15)
“15. ‘11. It is trite that at the stage of framing
of charge the court is required to evaluate the
material and documents on record with a view
to finding out if the facts emerging
therefrom, taken at their face value, disclosed
the existence of all the ingredients
constituting the alleged offence. At that stage,
the court is not expected to go deep into the
probative value of the material on
record. What needs to be considered is

16
whether there is a ground for presuming that
the offence has been committed and not a
ground for convicting the accused has been
made out. At that stage, even strong
suspicion founded on material which leads
the court to form a presumptive opinion as to
the existence of the factual ingredients
constituting the offence alleged would justify
the framing of charge against the accused in
respect of the commission of that offence.’
(Onkar Nath case [(2008) 2 SCC 561 : (2008) 1
SCC (Cri) 507] , SCC p. 565, para 11)”
(emphasis in original)

31. Now reverting to the decisions of this Court
in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC
368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu
Kurane [Dilawar Balu Kurane v. State of Maharashtra,
(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by
the respondents, we are of the opinion that they do
not advance their case. The aforesaid decisions
consider the provision of Section 227 of the Code and
make it clear that at the stage of discharge the court
cannot make a roving enquiry into the pros and cons
of the matter and weigh the evidence as if it was
conducting a trial. It is worth mentioning that the
Code contemplates discharge of the accused by the
Court of Session under Section 227 in a case triable
by it; cases instituted upon a police report are covered
by Section 239 and cases instituted otherwise than on
a police report are dealt with in Section 245. From a
reading of the aforesaid sections it is evident that they
contain somewhat different provisions with regard to
discharge of an accused:

31.1. Under Section 227 of the Code, the trial court is
required to discharge the accused if it “considers that
there is not sufficient ground for proceeding against
the accused”. However, discharge under Section 239
can be ordered when “the Magistrate considers the
charge against the accused to be groundless”. The
power to discharge is exercisable under Section 245(1)
when, “the Magistrate considers, for reasons to be
recorded that no case against the accused has been

17
made out which, if unrebutted, would warrant his
conviction”.

31.2. Section 227 and 239 provide for discharge
before the recording of evidence on the basis of the
police report, the documents sent along with it and
examination of the accused after giving an opportunity
to the parties to be heard. However, the stage of
discharge under Section 245, on the other hand, is
reached only after the evidence referred in Section 244
has been taken.

31.3. Thus, there is difference in the language
employed in these provisions. But, in our opinion,
notwithstanding these differences, and whichever
provision may be applicable, the court is required at
this stage to see that there is a prima facie case for
proceeding against the accused. Reference in this
connection can be made to a judgment of this Court
in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 :
1986 SCC (Cri) 256] . The same reads as follows: (SCC
pp. 755­56, para 43)
“43. … Notwithstanding this difference in the
position there is no scope for doubt that the
stage at which the Magistrate is required to
consider the question of framing of charge
under Section 245(1) is a preliminary one and
the test of ‘prima facie’ case has to be applied.
In spite of the difference in the language of
the three sections, the legal position is that if
the trial court is satisfied that a prima facie
case is made out, charge has to be framed.”

9.2 In the subsequent decision in the case of S. Selvi (Supra) this

Court has summarised the principles while framing of the charge at

the stage of Section 227/228 of the CrPC. This Court has observed

and held in paragraph 6 and 7 as under:

“6. It is well settled by this Court in a catena of
judgments including Union of India v. Prafulla Kumar

18
Samal [Union of India v. Prafulla Kumar Samal, (1979)
3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu
Kurane v. State of Maharashtra [Dilawar Balu
Kurane v. State of Maharashtra, (2002) 2 SCC 135 :
2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan
Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri)
1371] , State v. A. Arun Kumar [State v. A. Arun
Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 :
(2015) 1 SCC (LS) 505] , Sonu Gupta v. Deepak
Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC
424 : (2015) 2 SCC (Cri) 265] , State of
Orissa v. Debendra Nath Padhi [State of
Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 :
2003 SCC (Cri) 688] , Niranjan Singh Karam Singh
Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh
Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya,
(1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt.
Remembrancer of Legal Affairs v. Anil Kumar
Bhunja [Supt. Remembrancer of Legal Affairs v. Anil
Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri)
1038] that the Judge while considering the question of
framing charge under Section 227 of the Code in
sessions cases (which is akin to Section 239 CrPC
pertaining to warrant cases) has the undoubted power
to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case
against the accused has been made out; where the
material placed before the court discloses grave
suspicion against the accused which has not been
properly explained, the court will be fully justified in
framing the charge; by and large if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his rights to discharge
the accused. The Judge cannot act merely as a post
office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total
effect of the statements and the documents produced
before the court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and

19
cons of the matter and weigh the materials as if he
was conducting a trial.

7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010)
9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on
consideration of the various decisions about the scope
of Sections 227 and 228 of the Code, laid down the
following principles: (SCC pp. 376­77, para 21)
“(i) The Judge while considering the question
of framing the charges under Section 227
CrPC has the undoubted power to sift and
weigh the evidence for the limited purpose of
finding out whether or not a prima facie case
against the accused has been made out. The
test to determine prima facie case would
depend upon the facts of each case.

(ii) Where the materials placed before the
court disclose grave suspicion against the
accused which has not been properly
explained, the court will be fully justified in
framing a charge and proceeding with the
trial.

(iii) The court cannot act merely as a post
office or a mouthpiece of the prosecution but
has to consider the broad probabilities of the
case, the total effect of the evidence and the
documents produced before the court, any
basic infirmities, etc. However, at this stage,
there cannot be a roving enquiry into the pros
and cons of the matter and weigh the
evidence as if he was conducting a trial.

(iv) If on the basis of the material on record,
the court could form an opinion that the
accused might have committed offence, it can
frame the charge, though for conviction the
conclusion is required to be proved beyond
reasonable doubt that the accused has
committed the offence.

(v) At the time of framing of the charges, the
probative value of the material on record
cannot be gone into but before framing a
charge the court must apply its judicial mind

20
on the material placed on record and must be
satisfied that the commission of offence by the
accused was possible.

(vi) At the stage of Sections 227 and 228, the
court is required to evaluate the material and
documents on record with a view to find out if
the facts emerging therefrom taken at their
face value disclose the existence of all the
ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as
it cannot be expected even at that initial stage
to accept all that the prosecution states as
gospel truth even if it is opposed to common
sense or the broad probabilities of the case.

(vii) If two views are possible and one of them
gives rise to suspicion only, as distinguished
from grave suspicion, the trial Judge will be
empowered to discharge the accused and at
this stage, he is not to see whether the trial
will end in conviction or acquittal.””

9.3 In the case of Mauvin Godinho (Supra) this Court had an occasion

to consider how to determine prima facie case while framing the

charge under Section 227/228 of the CrPC. In the same decision this

Court observed and held that while considering the prima facie case at

the stage of framing of the charge under Section 227 of the CrPC there

cannot be a roving enquiry into the pros and cons of the matter and

weigh the evidence as if he was conducting a trial.

9.4 At this stage the decision of this Court in the case of Stree

Atyachar Virodhi Parishad (Supra) is also required to be referred to. In

that aforesaid decision this Court had an occasion to consider the

scope of enquiry at the stage of deciding the matter under Section

21
227/228 of the CrPC. In paragraphs 11 to 14 observations of this

Court in the aforesaid decision are as under :

“11. Section 227 of the Code of Criminal Procedure
having bearing on the contentions urged for the
parties, provides:

“227. Discharge.—If, upon consideration of
the record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is no sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his reasons
for so doing.”

12. Section 228 requires the Judge to frame charge if
he considers that there is ground for presuming that
the accused has committed the offence. The
interaction of these two sections has already been the
subject­matter of consideration by this Court. In State
of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC
(Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while
explaining the scope of the said sections observed:
[SCR p. 259 : SCC pp. 41­42 : SCC (Cri) pp. 535­36,
para 4]
Reading the two provisions together in
juxtaposition, as they have got to be, it would
be clear that at the beginning and the initial
stage of the trial the truth, veracity and effect
of the evidence which the Prosecutor proposes
to adduce are not to be meticulously Judged.

Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved,
would be incompatible with the innocence of
the accused or not. The standard of test and
judgment which is to be finally applied before
recording a finding regarding the guilt or
otherwise of the accused is not exactly to be

22
applied at the stage of deciding the matter
under Section 227 or Section 228 of the Code.
At that stage the court is not to see whether
there is sufficient ground for conviction of the
accused or whether the trial is sure to end in
his conviction. Strong suspicion against the
accused, if the matter remains in the region of
suspicion, cannot take the place of proof of
his guilt at the conclusion of the trial. But at
the initial stage if there is a strong suspicion
which leads the court to think that there is
ground for presuming that the accused has
committed an offence then it is not open to
the court to say that there is no sufficient
ground for proceeding against the accused.

13. In Union of India v. Prafulla Kumar Samal [(1979) 3
SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] ,
Fazal Ali, J., summarised some of the principles: [SCR
pp. 234­35 : SCC p. 9 : SCC (Cri) pp. 613­14, para 10]
“(1) That the Judge while considering the
question of framing the charges under Section
227 of the Code has the undoubted power to
sift and weigh the evidence for the limited
purpose of finding out whether or not a prima
facie case against the accused had been made
out.

(2) Where the materials placed before the
court disclose grave suspicion against the
accused which has not been properly
explained the court will be fully justified in
framing a charge and proceeding with the
trial.

(3) The test to determine a prima facie case
would naturally depend upon the facts of
each case and it is difficult to lay down a rule
of universal application. By and large however
if two views are equally possible and the
Judge is satisfied that the evidence produced
before him while giving rise to some suspicion
but not grave suspicion against the accused,
he will be fully within his right to discharge
the accused.

23
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which
under the present Code is a senior and
experienced court cannot act merely as a post
office or a mouthpiece of the prosecution, but
has to consider the broad probabilities of the
case, the total effect of the evidence and the
documents produced before the court, any
basic infirmities appearing in the case and so
on. This however does not mean that the
Judge should make a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial.”

14. These two decisions do not lay down different
principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979
SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated
what has been stated in Ramesh Singh case [(1977) 4
SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In
fact, Section 227 itself contains enough guidelines as
to the scope of enquiry for the purpose of discharging
an accused. It provides that “the Judge shall
discharge when he considers that there is no
sufficient ground for proceeding against the accused”.
The “ground” in the context is not a ground for
conviction, but a ground for putting the accused on
trial. It is in the trial, the guilt or the innocence of the
accused will be determined and not at the time of
framing of charge. The court, therefore, need not
undertake an elaborate enquiry in sifting and
weighing the material. Nor is it necessary to delve
deep into various aspects. All that the court has to
consider is whether the evidentiary material on record
if generally accepted, would reasonably connect the
accused with the crime. No more need be enquired
into.”

9.5 Applying the law laid down by this Court in the aforesaid

decisions and considering the scope of enquiry at the stage of framing

of the charge under Section 227/228 if the CrPC, we are of the opinion

24
that the submissions made by the learned Counsel appearing on

behalf of the appellant on merits, at this stage, are not required to be

considered. Whatever submissions are made by the learned Counsel

appearing on behalf of the appellant are on merits are required to be

dealt with and considered at an appropriate stage during the course of

the trial. Some of the submissions may be considered to be the

defence of the accused. Some of the submissions made by the learned

Counsel appearing on behalf of the appellant on the conduct of the

victim/prosecutrix are required to be dealt with and considered at an

appropriate stage during the trial. The same are not required to be

considered at this stage of framing of the charge. On considering the

material on record, we are of the opinion that there is more than a

prima facie case against the accused for which he is required to be

tried. There is sufficient ample material against the accused and

therefore the learned Trial Court has rightly framed the charge against

the accused and the same is rightly confirmed by the High Court. No

interference of this Court is called for.

10. In view of the above and for the reasons stated above, the present

appeal fails and as a result the appeal stands dismissed. Considering

the fact that the allegations against the appellant of sexual abuse are

25
very serious and affecting the dignity of a woman and is the most

morally and physically reprehensible crime in a society, an assault on

the mind and privacy of the victim and the trial for such offences are

required to be decided and disposed of at the earliest and considering

the fact that in the present case the learned Trial Court has framed

the charge against the accused and the incident is of 2013 and there

is already a delay in concluding the trial because of the pending

proceedings, we direct the learned Trial Court to conclude the trial at

the earliest within a period of six months from the date of receipt of

the Order of this Court. All concerned are directed to cooperate with

the Trial Court in the earlier disposal of the trial and within the

stipulated time observed hereinabove.

With these observations present appeal stands dismissed.

Pending application(s), if any, stand(s) disposed of.

MA No.2207 of 2018 in SLP (Crl.) No.3149­3150 of 2014

The present MA has been filed in a disposed of matter in SLP

(Crl.) No.3149­3150 of 2014 with the prayer to direct the Trial Court to

release the passport of the applicant so as to enable him to travel to

26
London anytime between 21.08.2018 to 01.09.2018. Since that period

is already over, the present MA has become infructuous and is

disposed of as such.

…………………………….J.
(ARUN MISHRA)

……………………………..J.
(M. R. SHAH)

New Delhi ……………………………..J.

August 19, 2019 (B. R. GAVAI)

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